Docket No. 14-1107

In The Supreme Court of the United States

October Term 2014

Malik Price; Cedrick R. Jones; and Ben Carter,

Petitioners,

v.

UNITED STATES of America,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRTEENTH CIRCUIT

Brief for Petitioners

The University of San Diego School of Law 26th Annual National Criminal Procedure Tournament

Attorneys for the Petitioners: P27

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TABLE OF CONTENTS

 

TABLE OF AUTHORITIES ......................................................................................................... iii  

QUESTIONS PRESENTED .......................................................................................................... vi  

STATEMENT OF FACTS ............................................................................................................. 1  

SUMMARY OF THE ARGUMENT ............................................................................................. 4  

STANDARD OF REVIEW ............................................................................................................ 5  

ARGUMENT .................................................................................................................................. 6  I.   THIS COURT SHOULD REVERSE THE THIRTEENTH CIRCUIT’S DECISION BECAUSE AGENT HOLDER’S UNREASONABLE USE OF DEADLY FORCE CONSTITUTED A SEIZURE UNDER THE FOURTH AMENDMENT WHEN HE SHOT THE UNARMED APPELLANT WHO WAS IDENTIFIED BY AN ANONYMOUS TIPSTER, AND THEREFORE THE BACKPACK EVIDENCE SHOULD BE SUPPRESSED BECAUSE ITS DISCOVERY CANNOT BE ATTENUATED FROM THE INITIAL ILLEGALITY OF THE SEIZURE. ........................................................................... 6  

A.   Appellant Ben Carter Was “Seized” Within The Meaning Of The Fourth Amendment When Agent Holder Shot Him, Despite His Subsequent Escape. ............................................ 6  

1.   The physical seizure definition as expanded by Hodari applies in this case. .................. 7  2.   The district court correctly applied the physical seizure definition expanded by Hodari and concluded that a physical seizure occurred. ..................................................................... 9  3.   Applying an expanded definition of physical seizure is necessary to preserve the protection guaranteed by the Fourth Amendment. ............................................................... 11  

B.   This Court Should Clarify Its Standard For Determining When Police Use Of Force Is Reasonable Under the Fourth Amendment and Revive Garner’s Clear Criteria. ................ 11  

1.   The confusing, imprecise standard for determining when police use of force is reasonable under the Fourth Amendment led the appeals court to err as a matter of law that Agent Holder had probable cause to justify the use of deadly force. ................................... 12  2.   An imprecise legal standard to determine when deadly force is unreasonable has drastic negative social policy implications. ...................................................................................... 15  

C.   The Contents Of Ben Carter’s Backpack Discovered At The Scene Of The Car Crash Were A Direct Result Of The Shooting And Should Therefore Be Suppressed. ................... 16  

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II.   THIS COURT SHOULD REVERSE THE THIRTEENTH CIRCUIT’S DENIAL OF THE MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT BECAUSE THE GOVERNMENT BLINDLY TARGETED THE DEFENDANTS, MANUFACTURED THE CRIME, AND PARTICIPATED IN THE CRIME FROM BEGINNING TO END, BUT HAD NO REASON TO BELIEVE THIS APPROACH WOULD BE EFFECTIVE FOR CRIMES OF THIS NATURE. .......................................... 18  

A.   This Court Should Apply a Four-Factor Test to Determine whether the Totality of the Circumstances Supports a Claim of Outrageous Government Conduct. .............................. 19  

B.   Each Factor Weighs in Favor of Petitioners When Applied to These Facts. ................ 20  1.   The government had no individualized suspicion of petitioners, and a post hoc consideration of petitioners’ pasts would not support targeting them. ................................. 20  2.   The “crime” was completely manufactured by the government, which is manifestly in opposition to Fifth Amendment principles and heavily supports a finding of outrageous government conduct. ............................................................................................................. 22  3.   Agent Miller supervised and directed the crime from conception to execution. ........... 23  4.   A stash house robbery of the sort proposed here is not the kind of crime for which this kind of substantial government action is necessary or effective. .......................................... 24  

CONCLUSION ............................................................................................................................. 25  

iii

TABLE OF AUTHORITIES Cases Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir. 2010), cert. denied, 131 S. Ct. 1045 (2011)...... 7, 10

Brower v. County of Inyo, 489 U.S. 593 (1989) ................................................................... passim

Brown v. Illinois, 422 U.S. 590 (1975) ........................................................................................ 16

California v. Hodari D., 499 U.S. 621 (1991) ...................................................................... passim

Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003) ....................................................................... 7

Ciminillo v. Streicher, 434 F.3d 461 (6th Cir. 2006) ..................................................................... 7

County of Sacramento v. Lewis, 523 U.S. 833 (1998) ............................................................... 8, 9

Graham v. Connor, 490 U.S. 386 (1989) .............................................................................. 12, 13

Hampton v. U.S., 425 U.S. 484 (1976) ........................................................................................ 19

Illinois v. Gates, 462 U.S. 213 (1983) ......................................................................................... 13

Lytle v. Bexas County, Texas, 560 F.3d 404 (5th Cir. 2009) ......................................................... 7

Moore v. Indehar, 514 F.3d 756 (8th Cir. 2008) ........................................................................... 7

New York v. Harris, 495 U.S. 14 (1990) ...................................................................................... 16

People v. Mitchell, 824 N.E.2d 642 (Ill. App. Ct. 2005) ............................................................. 17

Schultz v. Braga, 455 F.3d 470 (4th Cir. 2006) ............................................................................. 7

Scott v. Harris, 550 U.S. 372 (2007)............................................................................................ 14

Sherman v. U.S., 356 U.S. 369 (1958) ................................................................................... 18, 22

Sorrells v. U.S., 287 U.S. 435 (1932) .......................................................................................... 18

St. Hilaire v. City of Laconia, 71 F.3d 20 (1st Cir.1995) .............................................................. 7

Tennessee v. Garner, 471 U.S. 1 (1985) ............................................................................... passim

Terry v. Ohio, 392 U.S. 1 (1968) ................................................................................................... 6

Thomas v. Durastanti, 607 F.3d 655 (10th Cir. 2010) ........................................................... 10, 11

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U.S. v. Akridge, 346 F.3d 618 (6th Cir. 2003) ............................................................................... 5

U.S. v. Archer, 486 F.2d 670, 677 (2d Cir. 1973) ........................................................................ 22

U.S. v. Barger, 931 F.2d 359 (6th Cir. 1991) ........................................................................ 19, 20

U.S. v. Black, 733 F.3d 294 (9th Cir. 2013) .......................................................................... passim

U.S. v. Bonanno, 852 F.2d 434 (9th Cir 1988) ............................................................................ 19

U.S. v. Bradley, 196 F.3d 762 (7th Cir. 1999) ............................................................................... 7

U.S. v. Conrad, 673 F.3d 728 (7th Cir. 2012) .............................................................................. 17

U.S. v. Gross, 622 F.3d 393 (6th Cir. 2011) ................................................................................ 17

U.S. v. Gutierrez, 343 F.3d 415 (5th Cir. 2003) .......................................................................... 19

U.S. v. Jones, 13 F.3d 100 (4th Cir. 1993) ................................................................................... 19

U.S. v. McKissick, 204 F.3d 1282, 1294 (10th Cir. 2000) ............................................................. 5

U.S. v. Mosley, 965 F.2d 906 (10th Cir. 1992) ............................................................................ 19

U.S. v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998) .................................................................... 19

U.S. v. Norton, 700 F.2d 1072 (6th Cir. 1983) ...................................................................... 20, 22

U.S. v. Pitt, 193 F.3d 751 (3d Cir. 1999) ..................................................................................... 22

U.S. v. Reed, 349 F.3d 457 (7th Cir. 2003) .................................................................................. 17

U.S. v. Russell, 411 U.S. 423 (1973) ...................................................................................... 18, 25

U.S. v. Santana, 6 F.3d 1 (1st Cir. 1993) ..................................................................................... 19

U.S. v. Sealey, 30 F.3d 7, 9 (1st Cir. 1994) .................................................................................... 5

U.S. v. Simpson, 439 F.3d 490 (8th Cir. 2006) ............................................................................ 16

U.S. v. Twigg, 588 F.2d 373 (3d Cir. 1978) ..................................................................... 22, 23, 25

Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003) .......................................................................... 7

Weeks v. U.S., 232 U.S. 383 (1914) ............................................................................................. 16

v

Whren v. U.S., 517 U.S. 806 (1996) ............................................................................................ 14

Wong Sun v. U.S., 371 U.S. 471 (1963) ....................................................................................... 16

Constitutional Provisions U.S. Const. amend. IV ................................................................................................................... 6

U.S. Const. amend. V.................................................................................................................... 18

Statutes 42 U.S.C. § 1983........................................................................................................................... 15

Other Authorities Allison K. Wyman, Seized By The Moment – But Which Moment? How A Physical Force Seizure Requires Only Contact With Intent To Restrain, Not Intentional Termination Of Movement, 48 AM. CRIM. L. REV. 1485 (2011)............................................................................................ 7, 9, 11

Rachel A. Harmon, When Is Police Violence Justified?, 102 NW. U. L. REV. 1119 (2008).............. ..................................................................................................................................... 11, 12, 14, 15

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QUESTIONS PRESENTED I. Whether the appeals court erred in reversing the district court’s decision to grant

Appellant’s motion to suppress certain evidence and motion for summary judgment.

(1) Whether the appeals court erred in finding that Agent Holder’s shooting of the Appellant did

not constitute a seizure under the Fourth Amendment.

(2) Whether, if a seizure occurred, the appeals court erred as a matter of law that Agent Holder’s

use of deadly force was reasonable.

(3) Whether, if a seizure occurred, the appeals court erred in finding that the evidence recovered

from a backpack in the Appellant’s car should not be suppressed after Appellant crashed the car

due to blood loss caused by Agent Holder’s gunshot.

II. Whether the appeals court erred in finding that that ATF did not engage in outrageous

government conduct when it used a tactic known to have high cost and minimal benefit to

ensnare individuals with no or minor criminal history into a crime completely manufactured by

the government and supervised by a government agent.

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STATEMENT OF FACTS

In August 2012, the federal department of Alcohol, Tobacco, and Firearms (“ATF”)

chose the state of Apate for an effort known as Operation Gideon, which targeted individuals

believed to be planning to steal from drug dealers by sending a government agent who posed as a

drug stash house associate to suggest a lucrative theft from it. R. at 3. ATF sent a criminal

informant (“CI”) to propose a fictional stash house robbery in the city of Green Ridge. Id.

Without any particular individuals in mind, the CI attended a block party on March 8,

2013. R. at 56-57. The party was on the Southside of Green Ridge, which he characterized as

“the worst part of the city.” R. at 57. At random, he approached Petitioner Malik Price, R. at 4,

who had no criminal record, R. at 34, and proposed a stash house robbery. R. at 4. After Malik1

laughed and walked away, his brother, Terrance Price, asked the CI about a robbery opportunity.

R. at 5. The CI told Terrance that he had a friend who knew about a possible house to rob, and

Terrance agreed to meet with the CI and his friend five days later. R. at 5.

The CI’s friend was Agent Antonio Miller, who represented himself as “mov[ing] dope

for some Col[o]mbian guys each month,” R. at 35. Agent Miller said that his pay from the

Colombians was “bull[expletive],” and he had an idea to compensate himself. R. at 35. However,

he needed their help overcoming the two guards who would be at the house. After suggesting

that Terrance and his friends “nix th[e] dudes before they alert others,” Agent Miller gave

Terrance his plan for escaping suspicion. R. at 36. Terrance began to explain that he had talked

to friends about joining in the robbery, but Agent Miller scoffed at Terrance’s ability to carry out

the plan. R. at 36-37. Terrance retorted that he had a criminal history including having been

incarcerated for dealing drugs and having a stolen weapon, and that he could commit a crime

1 Since Malik and Terrance Price (deceased) share the same last name, they are referred to by their first names in this brief.

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“like robbin’ some random liquor store.” R. at 37. Agent Miller began to explain that this was

different, but Terrance changed the subject and began to ask Agent Miller what he wanted to do

with the guards. Id. Agent Miller told him to figure it out himself, but assured him that they were

a team and offered him a car and a house to hide out in after the robbery. R. at 37-38.

One week later, Agent Miller and the CI again met with Terrance, who brought Petitioner

Jones. R. at 39. Agent Miller mocked Jones’ proposed plan and told Terrance and Jones they

“need[ed] a bigger crew” despite his previous assertion that the plan of action was up to them. R.

at 40. He instructed them to acquire guns and come up with a better plan, and Terrance agreed to

comply. R. at 40-41. Three days later, Terrance brought DeAndre Ingram to meet with the CI

and Agent Miller. R. at 42. This time, Agent Miller accepted the plan and provided the address

and description of the house. R. at 43. He agreed to unlock the front or back door of the house,

guaranteeing access. Id. The group planned to meet early on April 4 to execute the robbery. Id.

On April 4, Agent Miller met with Terrance, Jones, and Malik. R. at 6. Ingram picked the

four of them up in a van, which they drove toward the fictional robbery site. Id. About five miles

from the house, Agent Miller instructed Ingram to pull the van over to wait for their next

instruction, and Ingram complied. Id. Miller received a phone call and exited the van, and ATF

agents rushed in. Id. After ATF agents threw a stun grenade into the van, Terrance exchanged

gunfire with several ATF agents. Terrance was killed and an ATF agent was paralyzed. Id.

Ingram fled the scene in the van, with Malik and Jones inside. Id. He soon crashed into a pole

and died. R. at 6-7. ATF apprehended Malik and Jones, who were critically injured. R. at 7.

Shortly thereafter, the ATF agents received an anonymous tip that two “suspicious

looking” men wearing baggy pants and hoodies were standing near the supposed stash house. Id.

Two agents asked the two men what was going on. Id. The men almost immediately began

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running away. Id. In the brief moment the agents saw the men’s faces, they noticed the suspects

were young, African-American men. Id. Then, Agent Holder identified himself as a federal agent

and yelled at the men to stop and put their hands up. Id. One of the men, later identified as

Michael Roby, stopped shortly thereafter, raised his hands in the air, identified the pellet gun he

was holding as a fake gun, and asked the agents not to shoot him. Id. They ordered him to drop

his weapon, and as he was complying, one of the agents shot him. He died several hours later. R.

at 7-8. As one agent radioed for backup, the other continued to pursue the second man. R. at 8.

The second man approached a parked car and reached into his pocket, at which point the

agent shot him three times. Id. After screaming in pain, the man successfully pulled a car key

from his pocket, limped into the driver’s seat, and drove off. Id.

Later, a local police officer found the car crashed into a drainage ditch. Id. The car, which

was in working order with a half tank of gas, was drenched with blood inside. Id. The officer saw

a backpack in the back seat and investigated its contents. Id. It was later determined that the car

had been going about thirty miles per hour when it crashed and there was no indicia that the

driver had taken evasive maneuvers to avoid it. R. at 9. Several hours later, police were notified

that a patient with severe blood loss and two bullets lodged in his leg was being prepared for

surgery at a local hospital. Id. The patient was later identified as Petitioner Carter. Id.

Petitioners were indicted on April 24, 2013. Id. Petitioner Carter moved to suppress the

contents of the backpack, and Petitioners moved to dismiss the indictment for conduct violating

their Fifth Amendment right to due process. Id. The United States District Court for the District

of Apate granted both motions on May 13, 2014. The United States Court of Appeals for the

Thirteenth Circuit reversed both judgments on June 6, 2014. This Court granted Certioriari.

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SUMMARY OF THE ARGUMENT

The United States Court of Appeals for the Thirteenth Circuit erred in reversing the

judgment of the District Court of Apate and denying Petitioner Ben Carter’s (hereinafter

“Carter”) motion to suppress the contents of his backpack as well as Petitioners’ motion to

dismiss the indictments for outrageous government conduct violating their Fifth Amendment

right to due process of law.

Fourth Amendment protection is implicated when a government agent uses deadly force

to make a seizure. However, the circuit courts are divided on how to define a physical seizure.

While some circuit courts hold that physical seizure requires intent and termination-of-

movement, the majority of circuit courts require intent and physical contact only. In resolving the

circuit split, the Court should reverse the appeals court and find that physical seizure requires

intent and physical contact only. Applying the standard adopted by the majority of circuit courts,

the facts in this case clearly constitute a seizure. The government actor, Agent Holder (“Holder”)

intentionally fired gunshots at Carter as he reached his car and two bullets struck Carter, who

was therefore seized, despite his subsequent escape.

Furthermore, it was unreasonable for Holder to use deadly force on a nonviolent, fleeing

suspect who was identified to the agents by an anonymous tipster. The use of deadly force is

unmatched in the level of intrusion upon an individual’s constitutionally protected rights, and

that factor must therefore weigh heavily when balancing the countervailing interests implicated

in this case. Here, Carter’s actions did not warrant such a drastic use of force. The loss of blood

Carter suffered, which caused him to crash the car, and the subsequent discovery of the backpack

evidence is not sufficiently attenuated from the initial unreasonable use of deadly force.

Therefore the evidence found in the backpack should be suppressed under the exclusionary rule.

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Outrageous government conduct in violation of the Fifth Amendment has evolved as a

remedy focused solely on government conduct, without regard to characteristics of the

defendant. This Court has consistently recognized that such a remedy ought to be available. Most

circuit courts analyze this remedy using a totality of the circumstances test. A four factor test

should be used to analyze whether government conduct was outrageous: (1) How the

government targeted the defendants; (2) How the crime originated; (3) the extent of the

government’s participation throughout the crime; and (4) the nature of the crime and the

demonstrated importance of the government tactics used to combat crimes of this nature.

Application of these factors to the facts of this case shows that ATF acted outrageously,

violating Petitioners’ Fifth Amendment due process right. ATF had no individualized suspicion

of Petitioners, and the criminal backgrounds they had were insufficient to mitigate ATF’s blind

targeting. The crime originated with ATF. Agent Miller acted as the supervisor throughout the

crime, directing Petitioners and providing necessary information and resources for the crime’s

execution. Finally, the justification that the government offered for the sting is not present here,

and there is evidence that the stings themselves result in more damage and loss of life than the

crimes would. Further, because the crime was fictional, thwarting it derives no actual benefit.

STANDARD OF REVIEW

When reviewing a motion to suppress evidence for an illegal seizure, a reviewing court

will reverse a district court's findings of fact for clear error, and will review its findings of law de

novo. See U.S. v. Sealey, 30 F.3d 7, 9 (1st Cir. 1994); U.S. v. Akridge, 346 F.3d 618 (6th Cir.

2003). Courts of review consider the legal question of outrageous government conduct de novo,

and defers to the district court's factual findings. See U.S. v. Black, 733 F.3d 294, 301 (9th Cir.

2013); U.S. v. McKissick, 204 F.3d 1282, 1294 (10th Cir. 2000).

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ARGUMENT I. THIS COURT SHOULD REVERSE THE THIRTEENTH CIRCUIT’S DECISION

BECAUSE AGENT HOLDER’S UNREASONABLE USE OF DEADLY FORCE CONSTITUTED A SEIZURE UNDER THE FOURTH AMENDMENT WHEN HE SHOT THE UNARMED APPELLANT WHO WAS IDENTIFIED BY AN ANONYMOUS TIPSTER, AND THEREFORE THE BACKPACK EVIDENCE SHOULD BE SUPPRESSED BECAUSE ITS DISCOVERY CANNOT BE ATTENUATED FROM THE INITIAL ILLEGALITY OF THE SEIZURE.

The Fourth Amendment protects individuals from unreasonable government searches and

seizures. U.S. Cons. amend. IV. Fourth Amendment protection only becomes available in the

seizure context when a seizure actually occurs, and therefore the Court must first establish “at

what point in [an] encounter the Fourth Amendment becomes relevant.” Terry v. Ohio, 392 U.S.

1, 16 (1968). The Court established in Tenn. v. Garner that “there can be no question that

apprehension by the use of deadly force is a seizure subject to . . . the Fourth Amendment.” 471

U.S. 1, 7 (1985). However, two subsequent decisions by the Court provide seemingly conflicting

definitions of physical seizure. Compare Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989)

(finding a physical seizure “when there is a governmental termination of freedom of movement

through means intentionally applied”) with California v. Hodari D., 499 U.S. 621, 626 (1991)

(finding “[t]he word ‘seizure’ readily bears the meaning of a laying on of hands or application of

physical force to restrain movement, even when it is ultimately unsuccessful”).

Circuit courts disagree whether a physical seizure requires intent and termination of

movement (Brower), or simply intent and physical contact (Hodari). In resolving the circuit split,

the Court should reverse the appeals court and find the physical seizure definition as expanded in

Hodari applies in this case. This conclusion would properly limit the termination-of-movement

requirement to seizures that do not involve physical force.

A. Appellant Ben Carter Was “Seized” Within The Meaning Of The Fourth Amendment When Agent Holder Shot Him, Despite His Subsequent Escape.

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1. The physical seizure definition as expanded by Hodari applies in this case.

As a preliminary matter, the Court should resolve the circuit split and evaluate the Fourth

Amendment claim using the definition of physical seizure as expanded by Hodari. The majority

of circuit courts apply the expanded physical seizure definition, and the Court should join them.

The First, Fifth, Sixth, Eighth, and Eleventh Circuits apply the Hodari2 standard requiring intent

and physical contact only while the Fourth, Seventh, and Tenth Circuits require intent and

termination-of-movement in accordance with Brower.3 See also Allison K. Wyman, Seized By

The Moment – But Which Moment? How A Physical Force Seizure Requires Only Contact With

Intent To Restrain, Not Intentional Termination Of Movement, 48 AM. CRIM. L. REV. 1485, 1489

(2011) (hereinafter “Wyman Article”). The appeals court incorrectly concluded the issue is

“unsettled and subject to a clear split in authority.” R. at 26. In fact, the fundamental question

regarding the definition of a physical seizure reveals that a majority of circuit courts follow

Hodari. See Wyman Article, 48 AM. CRIM. L. REV. at 1489.

The Court expanded the physical seizure definition in Hodari because it was an integral

2 St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir. 1995) (affirming district court’s grant of summary judgment in favor of defendants and finding “a shooting constituted the [a] seizure” where law enforcement shot a suspect); Lytle v. Bexar County, Texas, 560 F.3d 404, 410 (5th Cir. 2009), cert. denied, 130 S. Ct. 1896 (2010) (finding a seizure in an excessive-force case “when [the officer’s] bullet struck her.”); Ciminillo v. Streicher, 434 F.3d 461, 463-64, 466 (6th Cir. 2006) (finding a seizure when a beanbag propellant fired by a police officer hit an alleged rioter in face and caused injuries); Moore v. Indehar, 514 F.3d 756, 758, 762 (8th Cir. 2008) (holding a seizure occurred when a police officer shot a suspect who then continued to flee); Carr v. Tatangelo, 338 F.3d 1259, 1268 (11th Cir. 2003) (finding a suspect’s flight after an officer shot him irrelevant because it was “[the officer’s] intent and the physical contact of the bullet that governs our Fourth Amendment, seizure analysis”); see also Vaughan v. Cox, 343 F.3d 1323, 1329 (11th Cir. 2003) (finding a seizure when an officer’s gunshot instantly paralyzed a passenger and caused the driver to crash the vehicle). 3 Schultz v. Braga, 455 F.3d 470, 481 (4th Cir. 2006) (adopting termination-of-movement); Brooks v. Gaenzle, 614 F.3d 1213, 1215, 1220 (10th Cir. 2010) (finding no seizure occurred when a fleeing suspect was shot, climbed a fence, and fled police); U.S. v. Bradley, 196 F.3d 762, 768 (7th Cir. 1999) (reasoning Hodari and Brower together require: (1) a show of authority or use of force that (2) caused the fleeing person to stop escaping, in order for a seizure to occur).

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part of the Court’s analysis rather than a mere point of comparison. Hodari dealt with a show-of-

authority seizure and addressed whether a suspect was seized at the moment he discarded drugs

while fleeing from law enforcement. 499 U.S. at 623. Importantly, to define show-of-authority

seizures and distinguish them from physical seizures, the Court analyzed the effect that physical

force (or the absence thereof) had on the suspect’s claim that the drugs he discarded while

fleeing were the fruit of an unlawful seizure. The Court defined show-of-authority seizures by

the absence of physical force while physical seizures were defined using the common law arrest

exception (requiring only intentional physical force regardless of its success). See Hodari, 499

U.S. at 624. Since the police officer did not touch the suspect the before he discarded the drugs,

the Court reasoned it constituted a show-of-authority only. Only then, after the Court determined

an absence of physical force made the officer’s actions a show-of-authority could the Court

address the “narrow question” before it. See R. at 26 (discussing Hodari’s narrow question). The

Court’s analysis of physical force was not merely illustrative; it was integral to the analysis. The

appeals court misunderstood the importance of the Court’s physical force analysis.

Furthermore, the appeals court wrongly characterized the shooting as an attempted

seizure rather than an actual seizure. The appeals court read the common law exception in

Hodari as a mere illustration that attempted seizures are beyond the scope of the Fourth

Amendment. R. at 26. The appeals court’s reliance on County of Sacramento v. Lewis, 523 U.S.

833 (1998), on this point is not persuasive. In Lewis, police officers pursued a motorcycle during

a high-speed chase that ended when the motorcycle tipped over and the police car skidded into

the suspect, causing his death. Id. at 836-37. The Court in Lewis relied on Hodari to explain “that

a police pursuit in attempting to seize a person does not amount to seizure.” R. at 26. However,

the everyday meaning of “attempt” and “seizure” are distinct from their legal use. In Hodari, the

9

Court adopted the common law exception that requires only the intentional application of

physical force regardless of its success. 499 U.S. at 626. When a police officer intentionally

shoots a suspect, the physical force of the bullet seizes the suspect, and it is no longer “an

attempt.” See Wyman Article, 48 AM. CRIM. L. REV. at 1494.

The appeals court pointed to Lewis and its reliance on Brower to support its conclusion

that Hodari must be reconciled with Brower (requiring both intent and termination-of-

movement). R. at 26; 523 U.S. at 833, 844. However, the appeals court failed to realize the Lewis

decision cited Brower for its language regarding the police officer’s intent rather than

termination of movement. Id. The Court found that no seizure occurred because the physical

contact was not intentional. Lewis is distinguishable from the present case because a police

officer who accidentally hits a suspect with his car is not the same as a government agent who

intentionally shoots a fleeing suspect. This Court should resolve the circuit split by explicitly

rejecting the appeals court’s narrow interpretation of Hodari and reversing its holding.

2. The district court correctly applied the physical seizure definition expanded by Hodari and concluded that a physical seizure occurred.

Applying the physical seizure definition expanded by Hodari yields the same conclusion

reached by the district court: a physical seizure occurred. R. at 10. Under Hodari’s physical

seizure definition, where there is physical contact with intent to restrain movement, the Court

should find that a seizure occurred even if it was ultimately unsuccessful. 499 U.S. at 626.

Additionally, as the district court correctly noted, “a physical seizure is even more

evident when deadly force is used.” R. at 11, citing Garner, 471 U.S. at 7. In Garner, a police

officer shot and killed an unarmed juvenile as he fled from the scene of a crime, Id. at 3, 7 and

the Court found that a seizure had occurred. Id. at 7. Like the Garner defendant, Carter was

unarmed. See id. Like the officer in Garner, Holder shot at Carter and bullets struck him. R. at 8.

10

The district court explained, “it is Holder’s intent and the physical contact of his gunshot that

governs the Court’s “seizure analysis.” R. at 12, citing Hodari, 499 U.S. at 626.

The appeals court relied heavily on the Tenth Circuit’s Brooks v. Gaenzle decision, 614

F.3d 1213 (2010), cert. denied, 131 S. Ct. 1045 (2011), to support its conclusion that no seizure

occurred. See R. at 26. However, in an effort to make the right decision, the Brooks court

overreached by concluding that no seizure occurs without termination-of-movement. In Brooks,

the defendants forcibly broke into a garage intending to rob the attached house. 614 F.3d at 1215.

A neighbor called the police. Id. Responding officers tried to break down the house door, but

someone fired a gunshot through the door, barely missing the officers. Id. While the facts in

Brooks may illustrate a situation when it is undesirable to extend Fourth Amendment protection

to a suspect who shoots at police officers in the course of a robbery, that is not the case at hand.

Important factual distinctions exist between Brooks and the present case. Unlike the facts

in Brooks, it was Holder, the government agent, who shot first. Holder was in fact the only

individual who used deadly force. The appeals court’s overreliance on Brooks exemplifies the

danger of including the termination-of-movement requirement in physical seizure cases; it could

preclude judicial oversight in cases where scrutiny of government agents’ conduct is warranted.

Furthermore, the appeals court’s reliance on Thomas v. Durastanti, 607 F.3d 655 (10th

Cir. 2010), is misplaced because it does not support the appeals court’s claim that “Hodari must

be reconciled with the holding in Brower.” R. at 26. The appeals court cites Thomas, saying “a

seizure requires ‘intentional acquisition of physical control’ and occurs when ‘a person [is]

stopped by the very instrumentality set in motion or put in place to achieve the result.’” R. at 26.

This conclusion fails to consider the next sentence in Thomas, which states: “Even assuming

without deciding Mr. Thomas can meet the seizure element of his claim, however, he cannot

11

show that it was unreasonable.” 607 F.3d at 663 (emphasis added). Nothing in Thomas purports

to decide that Hodari must be reconciled with the Brower holding.

By relying on Brower and two Tenth Circuit cases, the appeals court failed to consider a

single case from one of the five circuits that have adopted Hodari’s definition. The district court

rightfully noted, “Holder intended his gunshot to restrain Carter, and the physical contact of the

bullet substantially impaired Carter’s movement.” R. at 12. The Court should agree with the

district court and find that “Carter was physically seized by agent Holder’s gunshot.” Id.

3. Applying an expanded definition of physical seizure is necessary to preserve the protection guaranteed by the Fourth Amendment.

Physical seizures that use deadly force must implicate the Fourth Amendment in order to

deter police misconduct and address important social policy concerns. If termination-of-

movement is required to trigger Fourth Amendment protection, judicial review of government

enforcement agents’ use of deadly force will be precluded if the suspect escapes – even if the

suspect is nonviolent. Since “[t]he intrusiveness of a seizure by means of deadly force is

unmatched,” Garner, 471 U.S. at 9, and the exact moment of seizure often determines what

evidence is admissible in criminal cases, see Wyman Article, 48 Am. Crim. L. Rev. at 1486, the

termination-of-movement requirement is especially dangerous. It may seem counter-intuitive to

extend Fourth Amendment protection to fleeing suspects, but it does not frustrate the purpose of

the Fourth Amendment. The Fourth Amendment is meant to regulate government actors – not

incentivize private actors. To regulate the use of physical force that government agents apply to

suspects, the termination-of-movement requirement cannot apply.

B. This Court Should Clarify Its Standard For Determining When Police Use Of Force Is Reasonable Under the Fourth Amendment and Revive Garner’s Clear Criteria.

The Court has not provided a principled basis for determining when a government

agent’s use of force is reasonable under the Fourth Amendment. See Rachel A. Harmon, When Is

12

Police Violence Justified?, 102 NW. U. L. REV. 1119 (2008) (hereinafter “Harmon Article”). The

district court noted, “[t]he use of deadly force to make an arrest implicates the Fourth

Amendment protection against unreasonable seizures.” R. at 12, citing Graham v. Connor, 490

U.S. 386, 395 (1989); see also Garner, 471 U.S. 1, 7. However, the relationship between the

standard of review in Garner and Graham is unclear at best, as evidenced by the differing

focuses of the lower court opinions in this case. See R. at 12-13, 27; see also Harmon Article,

102 NW. U. L. REV. at 1139.

1. The confusing, imprecise standard for determining when police use of force is reasonable under the Fourth Amendment led the appeals court to err as a matter of law that Agent Holder had probable cause to justify the use of deadly force.

The district court relied on the Court’s factors that it laid out in Garner to determine

when the use of deadly force is justified. R. at 12. The Court used a balancing test that

considered the individual’s interests against those of the government by the “totality of the

circumstances.” 471 U.S. at 7-8. In Garner, an unarmed eighth grader was shot and killed by a

police officer who saw him fleeing across a yard away from a house that reportedly had a

prowler. Id. at 3-4. After balancing the countervailing interests involved, the Court reasoned that

where the suspect is “nonviolent,” the government’s interest in securing an arrest is insufficient

to justify deadly force. Id. at 11-12. Applying Garner, the district court determined that Holder

did not have a reasonable basis to use deadly force based on Carter’s actions. R. at 14.

The appeals court disagreed, and in doing so it reached too far. At first, the appeals court

described the standard laid out in Graham. 490 U.S. at 395-96. Decided four years after Garner,

the Court in Graham described a more general standard for evaluating police uses of force. Id.

Graham specified that the reasonableness inquiry was an objective one and instructed courts to

conduct an interest-balancing inquiry similar to the one in Garner, adding that the courts must do

so under the “facts and circumstances of each particular case, including the severity of the crime

13

at issue, whether the suspect poses an immediate threat to the safety of officers or others, and

whether he is actively resisting arrest or attempting to evade by flight.” Id. at 396-97. Then,

instead of conducting the interest-balancing analysis that it described, the appeals court shifted

its focus to probable cause, reasoning “[t]he standard for probable cause is similar.” R. at 27.

While it is not constitutionally unreasonable to prevent escape by using deadly force if a

police officer has probable cause to believe the suspect poses a threat of serious physical harm to

the officer or others, see Garner, 471 U.S. at 11-12, the facts of this case do not justify the use of

deadly force. The agents knew about the Petitioners only because of an anonymous tip. The

anonymous tip reported two “suspicious looking” men wearing baggy pants and hoodies were

standing near the supposed stash house. R. at 7. It was only after the brief moment when the

agents could see that the men were young, African-American men that Holder identified himself

as a federal agent and yelled at the men to stop and put their hands up. Id. Shortly thereafter,

Roby stopped, raised his hands, identified the pellet gun he was holding as a fake gun, and asked

the agents not to shoot him. Id. As he was lowering the gun, Holder shot and killed him. R. at 7-

8. Holder continued to pursue Carter, and when he ran toward a parked car and reached into his

pocket, Holder shot at him three times. R. at 8. The men were nonviolent, fleeing suspects.

Furthermore, as the district court correctly found, the anonymous tip that characterized

Carter and Roby as “suspicious” was “unsubstantiated and dubious at best” R. at 13, citing Ill. v.

Gates, 462 U.S. 213, 230-32 (1983) and “there was no immediate need to use deadly force to

protect the public and agents or stop Carter’s flight.” R. at 14. Carter, a “nonviolent” suspect,

was unarmed and fleeing from a police officer who only moments earlier shot and killed his

friend. Id., see also Garner, 471 U.S. at 7-8. Under the totality of the circumstances, there could

be no reasonable basis for Holder to use deadly force, nor could there be probable cause.

14

Even if, assuming arguendo, the Court finds that agents had probable cause, it is still

necessary to perform an interest-balancing analysis in cases that involve searches or seizures that

are “unusually harmful to an individual's privacy or even physical interests – such as, for

example, seizure by means of deadly force.” Whren v. U.S., 517 U.S. 806, 818 (1996), citing

Garner, 471 U.S. 1. Unfortunately, the clear criteria laid out in Garner for determining the

reasonable use of deadly force against fleeing suspect has been undermined by the Court’s most

recent decision in Scott v. Harris. 550 U.S. 372 (2007). In Scott, a high speed car chase ensued

after a deputy sheriff who flashed his lights did not cause a suspect to pull over his car. Id. at

374-75. A second deputy who was unaware of exact underlying offense joined the pursuit and

eventually rammed the suspect’s car to stop him. Id. The suspect lost control of the vehicle and

crashed, which caused severe injuries. Id. The majority opinion in Scott rejected the defendant’s

attempt to frame the question in terms of the Garner test for determining whether deadly force is

permitted against a fleeing suspect. Id. at 383. The Court reasoned that Garner did not apply to

the "vastly different facts" in Scott regarding the use of force, particularly noting two

distinctions: (1) Garner involved shooting a gun instead of striking one car with another; and (2)

the threat posed by the unarmed fleeing suspect in Garner was remote compared to the "extreme

danger" posed by the defendant’s flight in Scott. Id.

After Scott, which emphasized “all that matters is whether [the officer’s] actions were

reasonable,” courts are left with no test beyond a case-specific “slosh” through “the factbound

morass of “reasonableness.” Harmon Article, 102 NW. U. L. REV. at 1135, quoting Scott, 127 S.

Ct. at 1178. The problem with this standard is exemplified by this case where Holder shot Carter

(like the police officer who shot the suspect in Garner) and Carter, an unarmed fleeing suspect

(like in Garner), then entered a car and drove off (more similar to the defendant in Scott).

15

Given the facts, it is no wonder that the lower courts struggled to determine which

standard to apply. Given these concerns, it is unreasonable to leave the reasonableness standard

as it currently stands. The Court should reverse the appeals court and return to Garner’s clear

mandate that the use of deadly force is not justified in instances where the suspect is nonviolent.

471 U.S. at 11-12.

2. An imprecise legal standard to determine when deadly force is unreasonable has drastic negative social policy implications.

Without a precise standard, “the legal training [police officers] receive about when to use

force mirrors current law: it often constitutes little more than an exhortation to act reasonably.”4

If the Fourth Amendment is to serve its purpose of regulating government agents and prevent

unreasonable seizures, there must be a standard that is more clearly defined.

Not only does the lack of a clear standard provide a dangerously inadequate definition for

police officers to learn during their training, ambiguity in the standard leeches into other areas of

law. For example, an unclear standard has debilitating impacts on individuals seeking a remedy

in federal civil suits under 42 U.S.C. § 1983. Federal liability often turns on what constitutes

constitutionally excessive force under the Fourth Amendment. Harmon Article, 102 NW. U. L.

REV. at 1127. Without a clear framework to determine what constitutes an inappropriate use of

force, the lower courts cannot clearly instruct jurors on the most basic questions about when and

how much force a police officer can use under the Fourth Amendment. Id.

The Court should reverse the appeals court and return to Garner’s clear mandate, and by

doing so, it will help clarify the reasonableness standard and rectify the ramifications of an

unclear standard that negatively impacts other areas of the law. 4 See Harmon Article, 102 NW. U. L. REV. at 1144 (citing e.g., Cal. Comm'n on Peace Officer Standards and Training, Basic Course Workbook Series: Student Materials, Use of Force, 1-3 to 1-8 (2006) (training officers that they may use reasonable force and using language from Graham to explain what is reasonable)).

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C. The Contents Of Ben Carter’s Backpack Discovered At The Scene Of The Car Crash Were A Direct Result Of The Shooting And Should Therefore Be Suppressed.

The exclusionary rule prohibits the admission of evidence directly obtained as the result

an illegal search and seizure under the Fourth Amendment. Weeks v. U.S., 232 U.S. 383, 393

(1914). The rule applies even in cases involving the “indirect fruits” of an illegal search or arrest,

if the challenged evidence bears a sufficiently close relationship to the underlying illegality. New

York v. Harris, 495 U.S. 14, 19 (1990).

The taint of an illegal seizure cannot be purged from the challenged evidence unless it is

sufficiently attenuated from the initial illegality, Wong Sun v. U.S., 371 U.S. 471, 488 (1963),

which is determined by analyzing: (1) the purpose and flagrancy of the initial illegality; (2) the

time elapsed between the illegal seizure and the discovery of incriminating evidence; and (3) any

intervening circumstances. Brown v. Ill., 422 U.S. 590, 603–04 (1975). The appeals court erred

by failing to consider each factor because it concluded that “too many uncertainties exist to

conclude the gunshot directly caused the discovery of the backpack’s contents.” R. at 29. The

Court should instead apply the analysis used by the district court and consider all three

attenuation factors. In doing so, the Court should find all three weigh against attenuation.

First, flagrant and purposeful conduct may be found when the official knew, or should

have known, that his investigatory conduct was likely unconstitutional but continued to engage

in such conduct. U.S. v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006). If the Court concludes that

Holder illegally shot Carter (which it must do before reaching this analysis), it should also find

Holder’s conduct was per se flagrant and purposeful.

Second, the time elapsed between the illegal seizure and the discovery of incriminating

evidence is not guided by any bright line test. See U.S. v. Reed, 349 F.3d 457, 463 (7th Cir.

2003). Instead, courts consider facts relevant to the temporal proximity between the illegal

17

seizure and the challenged evidence. See U.S. v. Conrad, 673 F.3d 728, 733 (7th Cir. 2012).

Although the record does not confirm the exact amount of time between the gunshot and the

crash, it is clear that Carter crashed his car only one mile away from where he was shot. R. at 15.

With law enforcement rapidly approaching, the time between could not be very long.

Third, an event will not be considered an intervening circumstance unless it effectively

breaks the chain linking an illegal seizure to the discovery of incriminating evidence. See U.S. v.

Gross, 622 F.3d 393, 402 (6th Cir. 2011). Moreover, even if an event is found to be an

intervening circumstance, that factor must still be weighed against the other two factors. See

People v. Mitchell, 824 N.E.2d 642, 649-50 (Ill. App. Ct. 2005). The district court properly

identified “[t]he only intervening circumstance was Carter getting in the car and driving one mile

away.” R. at 15. Since the car showed no signs of engine trouble and the gas tank was over half

full, it appears based on the evidence that Carter crashed his car only because of the blood loss

he suffered due to the gunshot. Id. Bleeding heavily and with law enforcement fast-approaching,

Carter abandoned his car and the backpack evidence as a result of Holder’s illegal seizure.

Furthermore, the purpose of the exclusionary rule supports suppression of the challenged

evidence. The district court’s reasoning best supports the core aim of the exclusionary rule – to

deter police misconduct. Indeed, in reaching its conclusion that the backpack evidence should be

suppressed, the district court explained that “[b]ecause Holder had no legal ground to shoot

Carter as he fled, exclusion of the evidence here serves to deter agents from repeating such

conduct in the future.” The Court should therefore suppress the evidence because all three

attenuation factors support the conclusion that Holder’s illegal seizure irrevocably tainted the

backpack evidence. Only this result will advance the purpose of deterring police misconduct

which animates the exclusionary rule.

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II. THIS COURT SHOULD REVERSE THE THIRTEENTH CIRCUIT’S DENIAL OF THE MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT BECAUSE THE GOVERNMENT BLINDLY TARGETED THE DEFENDANTS, MANUFACTURED THE CRIME, AND PARTICIPATED IN THE CRIME FROM BEGINNING TO END, BUT HAD NO REASON TO BELIEVE THIS APPROACH WOULD BE EFFECTIVE FOR CRIMES OF THIS NATURE.

The Constitution guarantees that “No person shall . . . be deprived of life, liberty, or

property without due process of law.” U.S. Const. amend. V. While an entrapment defense

requires that a defendant lack predisposition to crime, U.S. v. Russell, 411 U.S. 423, 436 (1973),

outrageous government conduct, a Fifth Amendment violation, does not. Support for an

approach that focuses solely on the behavior of the government rather than that of the defendants

has been consistent in this Court. As early as 1932, two Justices joined Justice Roberts in

asserting:

Whatever may be the demerits of the defendant or his previous infractions of law these will not justify the instigation and creation of a new crime as a means to reach him and punish him for his past misdemeanors. He has committed the crime in question, but . . . only because of instigation and inducement by a government officer. To say that such conduct by an official of government is condoned and rendered innocuous by the fact that the defendant . . . had previously transgressed is wholly to disregard the reason for refusing the processes of the court to consummate an abhor[r]ent transaction.

Sorrells v. U.S., 287 U.S. 435, 458-59 (1932) (Roberts, J. dissenting in part and concurring in the

judgment) (emphasis added). In Sherman v. U.S., four justices agreed:

Appeals to sympathy, friendship, the possibility of exorbitant gain, and so forth, can no more be tolerated when directed against a past offender than against an ordinary law-abiding citizen. A contrary view runs afoul of fundamental principles of equality under law, and would espouse the notion that when dealing with . . . criminal[s] anything goes.

356 U.S. 369, 383 (1958) (Frankfurter, J., concurring in the judgment) (emphasis added).

In U.S. v. Russell, four Justices espoused this opinion in two separate dissents. 411 U.S.

423, 441 (Stewart, J., dissenting) (“[t]he very basis of the entrapment defense itself demands

adherence to an approach that focuses on the conduct of the governmental agents, rather than on

whether the defendant was ‘predisposed’ or ‘otherwise innocent.’); 411 U.S. at 436-38 (Douglas,

19

J., dissenting) (adopting Roberts’s view in Sorrells and Frankfurter’s view in Sherman).

Most recently, five justices refused to foreclose the possibility of a remedy to a defendant

when the government behaved outrageously, even if the defendant was predisposed to crime.

Hampton v. U.S., 425 U.S. 484 (1976). Justices Brennan, Stewart, and Marshall restated their

dissent in Russell. Id. at 496. Justices Powell and Blackmun joined them in advocating an

argument that outrageous government conduct could violate Fifth Amendment due process

principles, though they concurred in the judgment to deny relief to this defendant. Id. at 493.

The outrageous government conduct defense advanced by Justice Powell in Hampton has

been applied in lower courts. Now, this Court should follow most circuits in explicitly

recognizing this defense, articulate factors to be applied in its evaluation, and apply those factors

to reverse the Thirteenth Circuit and dismiss the petitioners’ indictments.

A. This Court Should Apply a Four-Factor Test to Determine whether the Totality of the Circumstances Supports a Claim of Outrageous Government Conduct.

An outrageous government conduct claim considers the totality of the circumstances to

determine whether the government has acted outrageously such that a defendant’s due process is

violated. U.S. v. Black, 733 F.3d 294, 304 (9th Cir. 2013); U.S. v. Gutierrez, 343 F.3d 415, 421

(5th Cir. 2003); U.S. v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992). In their evaluations, courts

have followed a variety of approaches.5 In the decisions below, the district court adopted a

modified version of the Ninth Circuit’s six-factor test articulated in Black, 733 F.3d at 303. R. at

17. The appellate court declined to adopt a factor test, asserting instead that the standard “always 5 See Black, 733 F.3d at 303-04 (applying a six-factor test); U.S. v. Nolan-Cooper, 155 F.3d 221, 230 (3d Cir. 1998) (asking only whether the conduct in question was “shocking, outrageous, and clearly intolerable”); U.S. v. Jones, 13 F.3d 100, 104 (4th Cir. 1993) (evaluating factors present in other tests); U.S. v. Santana, 6 F.3d 1, 6 (1st Cir. 1993) (asserting that “outrageousness, by its nature, requires an ad hoc determination . . . [because] outrageousness is a concept, not a constant.”); Mosley, 965 F.2d at 911 (considering only “government creation of the crime and substantial coercion”); U.S. v. Barger, 931 F.2d 359, 363 (6th Cir. 1991) (applying a four-factor test); U.S. v. Bonanno, 852 F.2d 434, 437-38 (9th Cir 1988) (applying a five-factor test).

20

comes back to what is reasonable.” R. at 30.

Regardless of which test courts have adopted, they have considered consistent factors.

Enumerated factors are helpful in guiding lower courts in their consideration. This Court should

adopt a four-factor test which synthesizes the principles articulated by courts that have reviewed

outrageous government conduct arguments, including those articulated by the courts below. The

four proposed factors are: (1) How the government targeted the defendants; (2) How the crime

originated; (3) the extent of the government’s participation throughout the crime; and (4) the

nature of the crime and the demonstrated importance of the government tactics used to combat

crimes of this nature. Applying these four factors to the facts at bar supports only a reversal of

the appellate court.

B. Each Factor Weighs in Favor of Petitioners When Applied to These Facts.

1. The government had no individualized suspicion of petitioners, and a post hoc consideration of petitioners’ pasts would not support targeting them.

“Whether the government had reason to suspect an individual or identifiable group before

initiating a sting operation is an important consideration.” Black, 733 F.3d at 304. See also

Barger, 931 F.2d at 363 (targeting of defendant justified because he and his organization had a

violent history). If the government knows or has reason to believe that an individual is likely to

commit the sort of crime for which it wishes to initiate the sting, there is little argument for

outrageousness when the government targets him. Id.; U.S. v. Norton, 700 F.2d 1072, 1075 (6th

Cir. 1983) (“violent history of the Ku Klux Klan” justified defendant’s targeting).

Unlike the officers in Barger and Norton however, the criminal informant in this case had

no reason to suspect the petitioners of any ongoing criminal activity, much less criminal activity

of this sort. Despite his assertion on the stand at trial that he “would not initiate a sting unless

[he] determined a person probably committed similar robberies in the past,” R. at 57, the

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government’s CI simply went to “block parties and bars” looking for “shady people.” R. at 56-

57. The district court correctly noted that the CI had no knowledge of his targets’ criminal

histories when he first made contact with them. His first target, Malik, had no criminal history at

all. R. at 34. The only other individual with whom he spoke that night, Terrance, had a felony

conviction for possession of drugs with intent to distribute and a misdemeanor conviction for

possession of an unlicensed firearm. Id. The second meeting added Jones, whose criminal history

included a marijuana possession infraction and a shoplifting misdemeanor. Id. By this time, the

plan was well underway, and none of the ATF’s targets had a past that suggested they’d engaged

in crimes similar to armed robbery.

In its reversal of the district court’s decision, the Thirteenth Circuit opinion

acknowledged that the CI had no individualized suspicion of Petitioners but, citing Black,

asserted that their representations of similar activity “easily mitigated” the courts’ concerns about

overreaching. R. at 30. However, this analysis puts the focus in the wrong place, allowing the

government to target at random and justify its overreaching post hoc if it happens to ensnare

individuals with records. Furthermore, the Thirteenth Circuit erroneously asserted that

Petitioners represented that they had engaged in similar conduct before. R. at 30. Unlike Black,

in which the defendants represented that they had been convicted of nearly two dozen crimes and

had “just performed a stash house robbery,” 733 F. 3d at 307, Terrance mentioned only three

minor crimes to Agent Miller. R. at 37. When Terrance compared the proposed robbery to being

“like robbin’ some random liquor store,” Id., Agent Miller acknowledged the distinction,

beginning to explain that it was different. Id. Agent Miller similarly asserted that Petitioners’

claimed experience was categorically different from what was expected when he mocked Mr.

Jones’s assertion that he’d engaged in “hit-and-run stuff” and encouraged Petitioners to change

22

their plan. Id. at 40. With no initial reason to target Petitioners and with nothing in their past that

would even justify their targeting post hoc, this factor weighs heavily in favor of petitioners.

2. The “crime” was completely manufactured by the government, which is manifestly in opposition to Fifth Amendment principles and heavily supports a finding of outrageous government conduct.

This Court has noted that “[t]he function of law enforcement is the prevention of crime

and the apprehension of criminals. Manifestly, that function does not include the manufacturing

of crime.” Sherman, 356 U.S. at 372. Courts rejecting the outrageous government conduct

defense in particular cases have emphasized that the defense is not available when the

government “merely attached itself to [a criminal enterprise] that was already ongoing.” Black,

733 F.3d at 305. See also Norton, 700 F.2d at 1075 (finding no outrageous government conduct

where “the agent did not instigate the scheme; rather, he joined a group that had already begun

planning the criminal activity”); U.S. v. Twigg, 588 F.2d 373 (3d Cir. 1978) (reversing a

conviction for outrageous government conduct in part because “we have before us a crime . . .

conceived and contrived by government agents”).

The Third Circuit has noted that “in order for the claim of outrageous government

conduct to succeed, a government agent has to initiate the criminal conduct with the goal of

obtaining a conviction and must draw the defendant into the illegal activity to bring about that

goal.” U.S. v. Pitt, 193 F.3d 751, 761 (3d Cir. 1999). The Second Circuit has stated that

government manufacturing of exactly the crime in the case at bar – a robbery – would be

manifestly outrageous. U.S. v. Archer, 486 F.2d 670, 677 (2d Cir. 1973). (“It would be

unthinkable . . . to permit government agents to instigate robberies and beatings merely to gather

evidence to convict other members of a gang of hoodlums.”)

Here, the government manufactured a fake crime and pitched it to an unwary,

unjustifiably chosen target in hopes of convicting him and anyone he might bring along. The

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Thirteenth Circuit did not address this very important factor at all. It completely disregarded the

district court’s correct observation that “[b]ut for ATF’s imagination, there would be no crime

here.” R. at 19. Instead it, like the Ninth Circuit in Black, conflated the origin of the crime with

the individualized suspicion factor. This conflation is misplaced. There is a sharp line between a

government-created crime and one that is already ongoing or is initiated by the defendant. The

Black court itself acknowledged this distinction when it cited much authority distinguishing

between situations in which the government “proposed the criminal enterprise or merely attached

itself to one that was already established and ongoing,” although it incorrectly declined to

consider that factor in its analysis. 733 F. 3d at 305. Where, as here, the entire criminal activity is

the brainchild of the government, this factor weighs heavily in Petitioners’ favor.

3. Agent Miller supervised and directed the crime from conception to execution.

Whether and how the government participated in the crime and encouraged the execution

of the crime are important indicators of whether the government’s conduct was outrageous.

Black, 733 F.3d at 308. In Twigg, in which the defendant’s conviction was overturned for

outrageous government conduct, the court distinguished between extremely minimal conduct

such as picking debris up off the floor of a drug manufacturing house and very substantial

conduct, such as supplying essential ingredients for drug manufacturing. 588 F.2d at 377.

Here, Agent Miller stayed involved in the process and advised Petitioners and their

representatives from beginning to end, making him, as the district court correctly analyzed, a

“partner in the criminal activity rather than a mere observer.” R. at 21, citing Black, 733 F. 3d at

308 (internal quotation marks omitted). The Thirteenth Circuit identified the correct factors of

the duration, nature, and necessity of the government’s involvement in determining its

magnitude, but erroneously applied those factors in its analysis. R. at 30-31.

The Thirteenth Circuit did not consider the factor of duration. Agent Miller’s

24

participation here was not “intermittent or short-term,” Black, 733 F.3d at 308. He was present

for the entire duration of Petitioners’ criminal activity. He was at every meeting and among the

crew on the day of the planned robbery. The only activity that Petitioners engaged in outside of

Agent Miller’s presence was that which they engaged in at Agent Miller’s direction, specifically,

the recruitment of additional parties and securing of additional weapons. R. at 40.

Agent Miller’s instruction to acquire more people and weaponry is also relevant to the

second factor, that of the nature of the government’s involvement. The appellate court explained

that this factor considers whether “the government acted as a partner . . . or more as an observer

of the defendant’s criminal conduct,” R. at 30 (citing Black, 733 F. 3d at 308), but was incorrect

in asserting that Agent Miller provided no “plans . . . or direction on how to perform the

robbery.” R. at 31. Agent Miller clearly supervised the plan. Miller actively rejected Mr. Jones’s

initial proposal, repudiating both the plan itself and the number of people involved. R. at 40. At

each meeting, Petitioners presented their ideas to Miller in clear search of his approval, and if

they did not receive it, they revised their plans. Agent Miller made it clear that he was in charge,

and that compliance with his orders and expectations was essential to the crime’s execution.

Finally, with respect to the necessity of the government’s involvement in the scheme,

Miller provided the house’s address and the floor plan, as well as access to the interior of the

house. R. at 43. In addition, he offered to provide a car and a place for Petitioners to hide out

after the robbery, and Petitioners accepted the latter. R. at 38. Agent Miller was clearly much

more than a passive bystander who merely suggested the crime and walked away.

4. A stash house robbery of the sort proposed here is not the kind of crime for which this kind of substantial government action is necessary or effective.

Courts have noted that further government reach than typical might be warranted when

subterfuge is necessary in combating certain types of crime. Russell, 411 U.S. at 432; Twigg, 588

25

F.2d at 380. This Court has identified particular necessity for this kind of enforcement in drug

trafficking crimes, and thus gives leeway to the government in combating such crimes. Russell,

411 U.S. at 432 (“[I]n drug-related offenses . . . one of the only practicable means of detection

[is] the infiltration of drug rings and a limited participation in their unlawful present practices”).

The fictional crime here was a robbery. There is no evidence in the record that this kind

of sting is necessary or more effective than employing intelligence to learn about planned

robberies, or casing suspected drug stash houses. To the contrary, the district court reported a

factual finding that although there was a “correlative decrease in the level of violence and

number of kidnappings associated with stash house robberies,” it was accompanied by resulting

“injuries and deaths of suspects, federal agents, and innocent bystanders, often resulting in civil

lawsuits against the federal government.” R. at 3. The Thirteenth Circuit cites the government’s

brief in asserting that the nature of stash house robberies justifies reverse stings of this nature

because “[m]any home invasions related to drug deals involve disputes between rival gangs, and

trying to arrest one gang in the act of robbing another can lead to shoot-outs and hostage taking.”

R. at 31. But this fictional stash house was not purported to be affiliated with a gang, nor is there

any evidence in the record that Petitioners are in any way affiliated with gang activity.

Rather, this fictional robbery resulted in the paralysis of an ATF agent and three dead

suspects, while taking one pistol, three fake guns, and absolutely no drugs off the streets.

CONCLUSION For the foregoing reasons, Petitioners Malik Price, Cedric R. Jones, and Ben Carter

respectfully request that this court REVERSE the decision of the Thirteenth Circuit Court of

Appeals.